Customized Litigation: The Case for Making Civil Procedure Negotiable

Abstract

This article calls for a complete re-conceptualization of the procedural rules governing modern litigation. Specifically, it suggests that litigants ought to be given the opportunity to customize their litigation experience - that procedural rules should be treated as default rules from which parties can mutually negotiate deviations. Although they are not typically labeled as such, modest examples of customization already occur both within the rules of civil procedure and extra-judicially. This article argues that much greater tailoring is possible, and it suggests three criteria for assessing how much deviation from the current baseline is tolerable. This article argues that a judicial system that presents an opportunity for customized litigation would be more procedurally just, more efficient, and more accessible than one with only a set of non-negotiable procedural rules.

Keywords: Litigation, Civil Procedure, Default Rules, Customization

JEL Classification: K00, K10, K40, K41, K49